Dispensary associate Rodrigo Serrano rings up a client’s purchases at Trulieve Dispensary in Coral Springs on Friday. (Amy Beth Bennett / South Florida Sun Sentinel)
The fight over an amendment to legalize recreational marijuana in Florida has reached a fever pitch in recent weeks.
Opponents of Amendment 3 say legalization will create a monopoly, forbid people from growing the plant at home, and endanger drivers. Supporters argue that the initiative will not create a monopoly or prevent home grow and is instead about helping to end the criminalization of the drug, which has systemically targeted minorities.
So what is truth and what is fiction? The South Florida Sun Sentinel spoke with several constitutional and marijuana law experts to clear up some of the biggest questions surrounding the ballot initiative, which needs 60% of the vote to pass.
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Will Amendment 3 grant marijuana companies a ‘monopoly’ on weed?
Answer: The amendment on its own doesn’t open up the market to competition, experts say, but it explicitly leaves room for Florida’s legislators to do so.
Perhaps the biggest argument made by the Vote No on 3 campaign is that the law would effectively grant a monopoly to big marijuana companies like Trulieve, a reason the company has poured millions of dollars into the ballot initiative.
There are a few reasons opponents make this claim: Florida’s existing medical marijuana market is already dominated by a few wealthy companies with the millions necessary to buy a limited number of licenses, and the ballot language states that those same companies will become the first to legally sell recreational marijuana should it become law.
The amendment “allows Medical Marijuana Treatment Centers, and other state licensed entities, to acquire, cultivate, process, manufacture, sell, and distribute such products and accessories,” the ballot summary states.
Dispensary associate Rutilia Bautista rings up a client’s order at Trulieve Dispensary in Coral Springs on Friday. (Amy Beth Bennett / South Florida Sun Sentinel)
Does that necessitate a monopoly? Not exactly. Legal experts agree that, while the amendment does not itself expand the marijuana industry beyond a few existing companies, it leaves that decision up to legislators, a fairly typical approach for constitutional amendments.
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“The legislature may provide for the licensure of entities that are not Medical Marijuana Treatment Centers to acquire, cultivate, possess, process, transfer, transport, sell, and distribute marijuana products and marijuana accessories for personal use by adults,” the amendment states.
The decision to start with existing companies is fairly common, according to Robert Mikos, a law professor at Vanderbilt University who specializes in marijuana legalization.
Legalizing recreational marijuana can create competition for existing medical marijuana companies, so sometimes a ballot initiative will give them a head start to earn their support, he said. It also speeds up the rollout.
Ultimately, the decision of whether to expand the market beyond a select few businesses will be on lawmakers.
“The Florida Legislature could presumably pass a law tomorrow that basically says if Amendment 3 passes we’re going to offer an additional 500 licenses in this new market,” Mikos said.
One possible reason for the deference to legislators is that ballot initiatives must carefully avoid violating Florida’s “single subject rule,” which requires that initiatives discuss only one issue so voters don’t have to answer multiple questions with a yes-or-no response.
Including provisions to expand the existing system could defy such a rule, according to Quinn Yeargain, an associate law professor at Michigan State University who teaches constitutional law and a former Orlando resident. If the Florida Supreme Court determines that an initiative defies the rule, the whole thing could get thrown out, a waste of the millions spent putting it on the ballot.
“Passing it onto the Legislature or relying on the existing system is more constitutionally sound,” Yeargain said of licensing other companies, describing the opponents’ argument as “kind of intellectually dishonest”: “I’d be very skeptical if the Florida Supreme Court would’ve allowed an amendment that both legalized recreational marijuana and adopted a regulatory system for it. I don’t think they’d have allowed it on the ballot in first place.”
It’s likely Florida could also see out-of-state competition, said Bob Jarvis, a professor of law at Nova Southeastern University. Federal law prohibits discriminating against out-of-state businesses. Already, companies elsewhere have their eyes on the state.
“There are hundreds of contributions to the Yes on Amendment 3 campaign,” said Ciara Torres-Spelliscy, a law professor at Stetson University who teaches constitutional law. “While Trulieve is the biggest contributor to the Yes on Amendment 3 effort, other contributors have given over $500,000 including: Ayr Wellness Inc., Curaleaf, Inc., Green Thumb Industries, and Verano Holdings LLC.”
What about home grow?
Amendment 3 doesn’t explicitly legalize home grow, but it doesn’t ban it, either, experts say. Legislators could decide whether to legalize it.
Part of the marijuana monopoly controversy stems from a fraught, related issue: home grow, or whether Amendment 3 will enable Floridians to grow and cultivate their own weed.
Opponents have said the amendment “bans” home grow. An ad funded by the Republican Party of Florida depicts a gardener hearing the news about Amendment 3 and rushing to grow his own weed when a character named “Big Weed” informs him he can’t, saying, “Actually, we wrote the amendment, so we’re the only ones that can grow it.” Trulieve is now suing the state Republican Party and two TV stations over the ad.
So does Amendment 3 legalize home grow? Legal experts say no: The amendment explicitly provides for existing businesses to become the cultivators of marijuana, but says nothing about people. It doesn’t legalize home grow, but it doesn’t forbid it, either, meaning legislators could pass a law allowing it.
“If someone wants to allow home cultivation, you just go to the Legislature and pass a statute to allow it,” Mikos said. “It’s very easy to do.”
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Jarvis described the amendment’s language regarding home grow as “misleading,” and, as a result, people likely will show up to the polls thinking they are voting to grow their own pot.
Only when you “get into the weeds” of the amendment, he said, do you realize “‘oh, yeah, that’s what that is.’” He pointed to two sections of the amendment, one that describes marijuana companies and another that describes what personal use entails. The section on personal use allows for “the possession, purchase, or use of marijuana products or marijuana accessories,” but says nothing about cultivation, which the section on companies mentions.
Supporters of the amendment, including Trulieve CEO Kim Rivers, said they couldn’t include home grow because of the single subject rule, but legislators themselves could legalize it.
Jarvis thinks the amendment could have allowed home grow without violating the rule, but doing so would invite competition.
“I’d say it is very clear the companies bankrolling Amendment 3 certainly don’t want home grown,” he said. “It cuts into their market.”
Will everywhere smell like weed?
Answer: The amendment doesn’t crack down on the use of marijuana in public places, but experts say legislators can regulate it. However, greater access could increase how much people notice the scent.
Amendment 3’s opponents, including Gov. Ron DeSantis, repeatedly have warned of a ubiquitous pot smell when talking about their concerns, saying its “pungent odor” would reduce Floridians’ “quality of life.”
“The amendment authors could have allowed regulations for public smoking,” Dr. Jessica Spencer, the policy director of Vote No on 3, wrote on X. “But they didn’t.”
The single subject rule might be at play again here, Yeargain said. Even if the drafters of the amendment could have included stipulations about where marijuana could be consumed, a rejection from the Florida Supreme Court may have been a risk they didn’t want to take after spending millions to get the amendment on the ballot. Listing specific constraints also may have created the inference that any constraints not included are allowed.
Yeargain compared regulating marijuana use to regulating smoking or even speaking in public, saying “the Legislature has a significant amount of power to regulate how all this is done. It can’t totally undermine the purpose of the amendment, but the idea that all this is going to happen and Legislature has no power to fix it is just a fiction.”
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Many states ban nearly all public use, Mikos said, and Florida could do the same.
Jarvis agreed that language over public use wasn’t required, saying, “an amendment does not have to foresee nor does it have to address every possible consequence of the amendment if the amendment were to be passed.”
Still, the smell could become such a consequence in private places, wafting from apartments or porches.
“It’s up to the voter to say, now wait a second, what are the intended and unintended consequences?” Jarvis said. “Am I really OK with my neighbor’s son being on our shared porch smoking marijuana at 3 in the morning?”
Will there be an uptick in stoned-driving accidents?
Answer: The research is mixed, but overall it seems to show that states with legalized marijuana see an increase in car accidents.
A new, controversial PSA from the Florida Department of Transportation warns residents of the dangers of driving while high. Critics also point to rising insurance rates as a result.
Several studies have found a relationship between legalization and unsafe driving, but some have also found an inverse relationship or no relationship at all.
A 2022 study found that five states that legalized recreational marijuana saw an increase in car crashes and traffic deaths. States that did not legalize the drug did not see an increase. States saw an immediate jump that leveled out to about a 2% increase following legalization and another 2% increase after retail sales began.
“Legalization removes the stigma of marijuana use, while the onset of retail sales merely increases access,” lead researcher Charles M. Farmer, of the Insurance Institute for Highway Safety, said in a release. “But access to marijuana isn’t difficult, even in places without retail sales. Users who previously avoided driving high may feel that it’s OK after legalization.”
Meanwhile, a 2023 review of 29 studies found that 22 showed a relationship between legalization and accidents, while seven showed no relationship.
Will the criminalization of minor marijuana possession offenses come to an end?
Answer: While some jurisdictions already opt not to prosecute people for minor marijuana crimes, statewide arrests and searches due to marijuana use continue. Experts say Amendment 3 would help put an end to that and create a more consistent approach throughout the state.
One argument supporters cite in favor of Amendment 3 is that it would end Florida’s long history of criminalizing people, particularly minorities, over minor marijuana possession offenses. The amendment would legalize personal possession of up to 3 ounces of the drug. Meanwhile, opponents have argued that the state already barely prosecutes minor marijuana crimes.
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Several jurisdictions, including those in South Florida, have opted not to prosecute minor marijuana possession offenses as crimes. But others do. In 2022, Florida prosecutors filed 16,000 charges against people for possession of small amounts of marijuana, the Tampa Bay Times reported. Many jurisdictions still leave the decision of making an arrest up to officers’ discretion. And police throughout the state also use the smell of marijuana, such as in a car, as probable cause to stop or search people.
“It’s also often used as an excuse by the police to shake somebody down,” Mikos said. “It could be police in some jurisdiction, they don’t care at all about marijuana, but it gives them convenient excuse to go up to somebody, often a racial minority, and confront them, maybe pat them down in a stop-and-frisk setting or search their car if it’s a traffic stop.”
The amendment would also require jurisdictions to have a consistent approach, one that is not subject to the views of an individual state attorney or local police officer, Yeargain said. Still, the idea that legalizing marijuana would mostly benefit minorities is not entirely accurate.
Typically, “the people who have been most affected by criminalization, especially young black and brown men who get sent to prison, are not ones who get to benefit from the decriminalization or legalization,” Yeargain said. “It usually is white-owned companies that get very wealthy.”
